Citation Nr: 1107712
Decision Date: 02/25/11 Archive Date: 03/09/11
DOCKET NO. 06-28 178A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for a low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Thomas D. Jones, Counsel
INTRODUCTION
The Veteran served on active duty from May 1964 to January 1969.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a November 2005 rating decision of a Regional
Office (RO) of the Department of Veterans Affairs (VA).
Review of the record indicates the Veteran also filed a timely
notice of disagreement regarding the November 2005 assignment of
a 30 percent initial rating, effective May 26, 2005, for PTSD.
His appeal of this issue was later perfected up on the filing of
a September 2006 VA Form 9 substantive appeal. See 38 U.S.C.A.
§ 7105. In a subsequent August 2010 rating decision, however,
the Veteran was granted a total disability rating based on
individual unemployability due to service-connected disability
(TDIU) based on his PTSD, his sole service-connected disability,
effective May 26, 2005. Therefore, the Board finds this issue is
resolved in its entirety, and is no longer on appeal before the
Board.
FINDINGS OF FACT
Credible evidence has not been presented establishing that a
current low back disability is due to a disease or injury
incurred during active military service, or manifested to a
compensable degree within a year thereafter.
CONCLUSION OF LAW
A low back disorder was not incurred during active service, and
may not be presumed to have been incurred therein. 38 U.S.C.A.
§§ 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2010); 38
C.F.R. §§ 3.303, 3.307, 3.309 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's
duty to notify and assist claimants in substantiating a claim for
VA benefits, as codified in pertinent part at 38 U.S.C.A. §§
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§
3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed
below, the Board finds that VA has satisfied its duties to the
appellant under the VCAA. A VCAA notice consistent with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform
the claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek to
provide; and (3) inform the claimant about the information and
evidence the claimant is expected to provide. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002). VCAA notice requirements
apply to all five elements of a service connection claim (1)
veteran status; (2) existence of disability; (3) connection
between service and the disability; (4) degree of disability; and
(5) effective date of benefits where a claim is granted. Dingess
v. Nicholson, 19 Vet. App. 473, 484 (2006).
VA has made all reasonable efforts to assist the Veteran in the
development of his claim, has notified him of the information and
evidence necessary to substantiate the claim, and has fully
disclosed VA's duties to assist him. In June 2005, August 2005,
August 2008, February 2009, and January 2010 letters, the Veteran
was notified of the information and evidence needed to
substantiate and complete the claim on appeal. Additionally, the
August 2008 letter provided him with the general criteria for the
assignment of an effective date and initial rating. Id.
The Board notes that, in the present case, initial notice was
issued prior to the November 2005 adverse determination on
appeal; thus, no timing issue exists with regard to the notice
provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Board further finds that VA has complied with the duty to
assist by aiding the appellant in obtaining evidence. It appears
that all known and available records relevant to the issues on
appeal have been obtained and are associated with the Veteran's
claims files. The RO has obtained the Veteran's service
treatment records, as well as VA and non-VA medical records.
Pertinent medical records have also been obtained from the Social
Security Administration. See Baker v. West, 11 Vet. App. 163,
169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72
(1992). He has also been afforded VA medical examination on
several occasions, most recently in April 2010. The Board notes
that the VA examination report contains sufficiently specific
clinical findings and informed discussion of the pertinent
history and clinical features of the disability on appeal and is
adequate for purposes of this appeal. The Board is not aware,
and the Veteran has not suggested the existence of, any
additional pertinent evidence not yet received.
The Veteran submitted new evidence, in the form of his September
2010 contentions, directly to the Board. His representative
subsequently submitted a December 2010 waiver of agency of
original jurisdiction (AOJ) review of this evidence; thus, his
appeal need not be remanded for RO consideration of this
evidence. See 38 C.F.R. § 20.1304.
Based on the foregoing, the Board finds that the Veteran has not
been prejudiced by any failure of VA in its duties to notify and
assist him, and that any such violations could be no more than
harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004). In any event, the Veteran has neither alleged nor
demonstrated any prejudice with regard to the content or timing
of VA's notices or other development. See Shinseki v. Sanders,
129 U.S. 1696 (2009) (reversing prior case law imposing a
presumption of prejudice on any notice deficiency, and clarifying
that the burden of showing that an error is harmful, or
prejudicial, normally falls upon the party attacking the agency's
determination). Thus, adjudication of his claim at this time is
warranted.
The Veteran seeks service connection for a low back disability.
Service connection may be established for disability resulting
from disease or injury incurred during military service. 38
U.S.C.A. §§ 1110, 1131. Service connection may be presumed for
certain disabilities, such as arthritis, which manifest within a
prescribed period of time following service separation.
38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As
with any claim, when there is an approximate balance of positive
and negative evidence regarding any matter material to the claim,
the claimant shall be given the benefit of the doubt.
38 U.S.C.A. § 5107.
In August 1967, the Veteran was treated for a stab wound to the
back sustained from an unknown assailant. Physical examination
revealed a 2.5-3 cm gash over the left sacrospinal region. The
gash penetrated through the fascia and into the underlying
muscle. An X-ray of the lumbosacral spine indicated no
significant bone or soft tissue abnormalities. A needle fragment
was observed in the subcutaneous soft tissue of the dorsal region
of the spine, almost an inch to the left of the midline, slightly
below L1. No artery or nerve involvement was diagnosed. The
wound was cleaned and sutured, and the Veteran was returned to
duty the next day. The Veteran's January 1969 service separation
examination was negative for any abnormalities of the spine or
abdomen. On his concurrent report of medical history, the
Veteran denied any history of back trouble of any sort.
Two January 1977 letters from M.F.B., M.D., a private physician,
indicated the Veteran sustained an on-the-job low back injury in
March 1976. He was lifting a heavy object when he felt a severe
pain in his low back and right leg. Surgical repair was
subsequently performed in April 1976, with significant
improvement. According to Dr. B., however, the Veteran remained
disabled from all but light work not involving any lifting. Of
note is an April 1977 lumbar myelogram which found no definite
defects of the lumbar spinal column. A ruptured disc, however,
was observed at L3-4.
Subsequent private treatment records confirm current diagnoses of
a low back disability, diagnosed as advanced degenerative disc
disease of the lumbosacral spine. In May 1982, the Veteran
sought state disability benefits due to his back disability, and
claimed a November 1975 injury to his back following a fall. No
prior history of a back injury was noted at that time. The
Veteran was hospitalized at a private facility in January 1993
for treatment of psychiatric symptoms, and he was also afforded
physical therapy of the low back while hospitalized. At that
time, he gave a history of a low back injury in April 1976 while
on the job, and he did not mention a pre-existing low back
injury. In July 2001, the Veteran sought private treatment for a
June 2001 fall in which he injured his right shoulder, neck,
back, and hip.
A VA orthopedic examination was afforded the Veteran in October
2005. He reported being stabbed in the back during military
service, but claimed he was unaware how long he was hospitalized
thereafter. Currently, he experienced pain along the length of
his spine, to include both the cervical and thoracolumbar
regions. His pain radiated into his upper and lower extremities,
according to the Veteran. After physical evaluation of the
Veteran, a VA examiner diagnosed cervical and lumbar spondylosis,
with superimposed chronic cervical and lumbosacral strain.
Thereafter, the examiner reviewed the Veteran's claims file, and
determined the Veteran's stabbing during military service was
less likely than not the cause of his current back disabilities.
The examiner noted that the Veteran's injury in service was a
soft tissue stab wound, whereas his current disabilities involved
arthritic degenerative changes with spondylosis, a diagnosis seen
in a significant percentage of the population. The examiner
could find no medical basis for a medical nexus between a soft-
tissue injury 40 years ago and a current degenerative disorder.
In support of his claim, the Veteran submitted a February 2006
private examination report. The Veteran self-reported his
medical history. He stated he was stabbed in the back at the L1-
2 level in August 1967 during military service. He reported
chronic back pain thereafter. After physically examining the
Veteran, a private chiropractor, R.J.Z., D.C., diagnosed status
post trauma cervical, thoracic, and lumbar spinal sprain/strain
injury, with paravertebral myofascial pain syndrome. The Veteran
also exhibited severe right cervicobrachial and gluteofemoral
neuralgia and radiculopathy. In the chiropractor's opinion, the
Veteran's current back disorders were the result of his stab
wound during military service.
A second VA orthopedic examination was afforded the Veteran in
April 2010. The Veteran's history of a stab wound to the back
during military service was noted. The examiner, a physician,
noted that the Veteran's stab wound initially required only
suturing, and did not result in hospitalization beyond his
initial treatment. The Veteran's current symptoms included
severe pain and limitation of motion, especially with use. He
used a cane to aid mobility. After physical examination of the
Veteran and review of the claims folder, the examiner concluded
the Veteran's current low back disability was unrelated to his
in-service stab wound. The Veteran's current low back disorders
were in the area between L3-S1, whereas his original stab wound
was higher up along his spine. Additionally, the Veteran was not
noted to have any residual injury of his back at service
separation in 1969. Therefore, the examiner concluded it was
less likely than not that the Veteran's current low back
disability was caused or aggravated by his in-service injury.
The Board finds the preponderance of the evidence to be against
the award of service connection for a low back disability, as the
Veteran's current low back disabilities are not shown to be a
result of an in-service disease or injury, and did not manifest
to a compensable degree within a year thereafter. Although a
stab wound to the back is confirmed within his service treatment
records in August 1967, his January 1969 service separation
examination was negative for any abnormality of the spine at that
time, and the Veteran denied any history of a back disorder on
his concurrent report of medical history. Thereafter, he did not
seek treatment for a back injury again until 1975, when he
reported a November 1975 fall while at work. He again sustained
an on-the-job back injury in March 1976, subsequently requiring
surgery. During initial post-service treatment for his back
injuries, the Veteran did not give a history of a back injury in
service.
In support of his claim, the Veteran has submitted the
aforementioned private opinion of R.J.Z., D.C. "It is the
responsibility of the BVA . . . to assess the credibility and
weight to be given to evidence." Hayes v. Brown, 5 Vet. App.
60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93
(1992)). With regard to the weight to assign to medical
opinions, the Court has held that
[t]he probative value of medical opinion evidence is
based on the medical expert's personal examination of
the patient, the physician's knowledge and skill in
analyzing the data, and the medical conclusion that
the physician reaches . . . As is true with any piece
of evidence, the credibility and weight to be attached
to these opinions [are] within the province of the
[BVA as] adjudicators . . . .
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
Regarding the chiropractor's conclusion that the Veteran's
current back disabilities are the result of his in-service stab
wound, the Board finds this opinion to be of limited probative
value for several reasons. First, the chiropractor did not
provide a complete rationale for his conclusion. See e.g. Bloom
v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a
physician's statement is dependent, in part, upon the extent to
which it reflects "clinical data or other rationale to support
his opinion"). He failed to explain how a soft tissue injury,
without nerve or artery involvement, would result in the
Veteran's current spinal disability. The chiropractor also
failed to account for all the contemporaneous evidence regarding
the Veteran's initial injury. As noted above, an X-ray of the
Veteran's lumbosacral spine taken immediately after the injury
found "no significant bone or soft tissue abnormalities seen."
Additionally, the January 1969 service separation examination and
report of medical history were both negative for evidence of a
chronic spinal abnormality. The chiropractor failed to explain,
in light of this competent medical evidence, how the August 1967
injury could result in a chronic disorder. As the Court has
noted, most of the probative value of a medical opinion comes
from its reasoning. A medical opinion is not entitled to any
weight "if it contains only data and conclusions." Nieves-
Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the
chiropractor did not account for the Veteran's multiple
documented post-service injuries to his spine, and what role they
might have played in contributing to the Veteran's current spinal
disability. Therefore, the Board finds the chiropractor's
opinion to be of no probative value for the reasons already
discussed.
In contrast, the 2005 and 2010 VA examinations were rendered
based on both full review of the medical record, as well as
physical examination of the Veteran. Both examiners noted that
the Veteran was only hospitalized for observation following his
initial injury, and was not noted to have damage to his bones,
arteries, or nerves as a result of the stabbing. Post-service,
he did not again seek treatment for a back disorder until he
experienced on-the-job injuries in 1975 and 1976. Finally, as
was noted on the 2010 VA examination, the Veteran's initial stab
injury was well above the location of his ruptured disc at L3-4,
and his subsequent degenerative changes at L3-S1. No competent
medical expert has adequately explained how a soft tissue injury
in a different location of the back could result in an orthopedic
disorder at this location. For these reasons, the Board finds
the 2005 and 2010 VA examinations to be more probative.
The Veteran has also offered his own contentions, stating that
his current back disabilities are the result of his in-service
stab wound in August 1967. As a layperson, however, the Veteran
is not capable of making medical conclusions; thus, his
statements regarding causation are not competent evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true
that lay statements may be competent to support a claim for
service connection by supporting the occurrence of lay-observable
events or the presence of disability or symptoms of disability
subject to lay observation. See Jandreau v. Nicholson, 492 F.3d
1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d
1331 (Fed. Cir. 2006) (addressing lay evidence as potentially
competent to support presence of disability even where not
corroborated by contemporaneous medical evidence). Orthopedic
disorders, however, are complex disorders which require
specialized training for a determination as to diagnosis and
causation, and they are therefore not susceptible of lay opinions
on etiology, and the Veteran's statements therein cannot be
accepted as competent medical evidence.
Additionally, the Board does not find the Veteran's statements of
chronic symptomatology to be credible. He denied a history of a
back disability on his January 1969 report of medical history,
and did not attribute his post-service back complaints to his in-
service stabbing for many years, until he filed his 2005 claim
for compensation. Although a VA claim was previously filed by
the Veteran in 1977, he sought only pension at that time, and did
not attribute his back injury to the in-service incident. For
these reasons, the Veteran's lay statements are not found to be
credible.
In conclusion, the preponderance of the evidence is against the
award of service connection for a low back disability. The
Veteran has not presented competent evidence establishing a nexus
between an in-service disease or injury, and his current low back
disabilities, and service connection must thus be denied. As a
preponderance of the evidence is against the award of service
connection, the benefit-of-the-doubt doctrine is not applicable
in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002);
Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
ORDER
Entitlement to service connection for a low back disability is
denied.
______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs